R v Phipps (James Michael)

This is the judgment of the court.

The appellant is James Phipps, aged 39. On 28th October 2004, in the Crown Court at Kingston, before His Honour Judge Haworth, he pleaded guilty to dangerous driving. On 25th November 2004 he was sentenced to eight months' imprisonment and disqualified from driving for two years. He appeals against conviction and sentence by leave of the single judge, Cox J, who refused bail but directed expedition.

At about 9 am on 29th October 2003 the appellant drove his vehicle, a Ford Explorer, south in the wrong direction on the northbound carriageway of the A3 and by the New Malden underpass collided head on with an oncoming vehicle travelling in the outside lane. A breath test was taken at the scene, which registered positive. The appellant was arrested on suspicion of driving with excess alcohol. He was taken to Kingston Police Station, where an evidential specimen of breath was taken at 10.17 am. The lower reading was recorded as 50 microgrammes of alcohol per 100 millilitres of breath, which compares with the legal limit of 35 microgrammes. A blood sample was then taken, which showed recent use of cocaine by the appellant.

The victim was injured but fortunately less seriously than might have been the case. Her injuries included redness, abrasion and bruising over the breast bone or sternum, which was tender on palpation, and a swollen and bruised right wrist. Her right shoulder blade and hip were also tender and there was bruising across the lower abdominal region and on both knees. The appellant suffered broken ribs.

The appellant was interviewed on the day of the accident. He said that he could not remember what had happened but admitted that he had drunk between four and six Jack Daniels and coca-cola. His last drink was estimated to have been consumed between about 1.30 and 2 am. He was bailed to return to Kingston Police Station on 17th December 2003. On that day he was charged with driving with excess alcohol contrary to section 5 of the Road Traffic Act 1988. He made no reply.

The appellant subsequently attended Kingston Magistrates' Court on 23rd December 2003 and pleaded guilty to driving with excess alcohol. He was fined £300 and disqualified from driving for twelve months.

The appellant was subsequently summonsed in relation to dangerous driving in late January or early February 2004. It appears that what happened was that after the appellant was sentenced by the magistrates the victim or her family contacted the press complaining about the level of the sentence. Perhaps as a result of reports in the press, the prosecuting authorities considered the matter further and the appellant was summonsed in relation to dangerous driving in late January or early February 2004. The matter came before His Honour Judge Haworth on 28th October 2004 when it was submitted that, having been convicted (albeit after a plea) and sentenced for driving with excess alcohol, it was an abuse of the process for the Crown to proceed subsequently against him for dangerous driving where the dangerous driving arose out of the same or substantially the same facts.

The judge ruled that there was no abuse of process. He held that the prosecution for dangerous driving did not arise out of the same facts as the earlier prosecution for driving with excess alcohol. It was following that ruling that the appellant pleaded guilty.

Mr Amarasinha submits on behalf of the appellant that the judge was wrong so to hold. It appears to us that in order to determine this question it is necessary first to identify the correct legal principles and then to apply them to the facts.

Principle

The propositions advanced on behalf of the appellant may be summarised as follows. 1. Subject to proposition 2, no one should be punished twice for an offence arising out of the same or substantially the same set of facts. To do so would offend the principle that a defendant is not to be tried again on the same or substantially the same facts for more serious offences on an ascending scale of gravity. 2. Proposition 1 does not apply where the prosecution shows that there are special or exceptional circumstances which make it just for a second prosecution to be brought. Mr Amarasinha relies in particular upon R v Elrington (1861) 1B&S 688; Connelly v DPP [1964] AC 1254 and R v Beedie (1987) 2 Cr App R 176. In the particular circumstances of this case he also relies upon R v Forest of Dean Justices, ex parte Farley [1990] RTR 228 and this passage in Archbold 2005 at paragraph 32–29:

" Order of trials where there is an excess alcohol charge.

Where a defendant is facing two charges, one of dangerous driving and the other of driving with excess alcohol, based upon the same facts, the prosecution should choose either to proceed with the charge of dangerous driving and consider bringing the lesser charge if the defendant is acquitted, or to proceed with the excess alcohol charge alone. The invariable rule is that where a person is tried on a lesser offence, he is not to be tried again on the same facts for a more serious offence. A contrary course of action would amount to an abuse of the process of the court: see R v Forest of Dean Justices, ex parte Farley [1990] RTR 228 DC."

In our judgment, subject to some further elaboration, propositions 1 and 2 are correct. They are soundly based on the authorities relied upon.

The only scope for possible debate is whether the principle applies not only where the facts are the same but also where they are substantially the same and precisely what that means.

The classic statement of principle is that of Cockburn CJ in Elrington. In that case the co-accused has been summarily tried and acquitted of common assault. He was subsequently indicted on the same facts for assault causing grievous bodily harm and assault causing actual bodily harm. The accused demurred. The demurrer was upheld. The actual basis for the decision was that, by virtue of sections 28 and 29 of the Offences Against the Person Act 1828, a certificate of acquittal of common assault released the accused "from all further or other proceedings, civil or criminal, for the same cause". Had the justices thought the assault to be an aggravated one, they would, according to the procedure of the day, have sent it for trial. However, Cockburn CJ made the following observation at page 696:

"… we must bear in mind the well-established principle of our criminal law that a series of charges shall not be preferred, and, whether a party, accused of a minor offence is acquitted or convicted he shall not be charged again on the same facts in a more aggravated form."

That principle was approved by the House of Lords in Connelly. This can perhaps be most clearly seen in the speech of Lord Devlin. He said at pages 1356 and 1358 that the principle was essentially the same as that exemplified in the civil law in the classic statement of Wigram VC in Henderson v Henderson (1843) 3 Hare 100 at pages 114–115. Lord Devlin expressly approved the statement of Cockburn CJ at pages 1357. However, as we read his speech, he did not restrict the principle to a second trial on the same facts, but extended it to a trial on "the same or similar facts": see page 1360. See also per Lord Reid (at page 1296) where he said:

"So the general rule must be that the prosecutor should combine in one indictment all the charges which he intends to prefer."

Lord Pearce put it in this way at page 1367:

"It might seem at first sight that the second prosecution here is a breach of the 'well-established principle of our criminal law' referred to by Cockburn in R v Elrington and approved by Pollock B in R v Miles [(1890) 24 QB 243] that 'a series of charges shall not be preferred'. Since the time when those words were spoken the joinder of charges in an indictment has been deliberately facilitated by the Indictments Act, 1915, and there is thus the more reason for saying that in general the prosecutor should join in one indictment all the charges that he wishes to prefer in respect of one incident. It would be an abuse if he could bring up one offence after another based on the same incident, even if the offences were different in law, in order to make fresh attempts to break down the defence."

We note in passing that in the R v Forest of Dean Justices case in the Divisional Court Garland J said at page 235K that Connelly was authority for these propositions among others:

"(1) Pleas of autrefois acquit and autrefois convict must relate to a crime which is the same, or in the effect the same, as that originally charged. (2) There is a wider principle that a second trial involving the same or similar facts may in the discretion of the court be stayed if to proceed would be oppressive or prejudicial and therefore an abuse of the process of the court."

We agree, subject...